Friday, 28 November 2008

“They (India) attracted the pharmaceutical industry from South Africa, and international designer labels are manufacturing in India. India has clamped down on piracy. If we (South Africa) want to be winners we must do what winners do.” Leon Louw, executive director of the Free Market Foundation.

"The ANC (originally) inferred that it owned the trademark rights to the name, but it appears it has abandoned this argument," Deon Bouwer (acting for COPE). For the earlier Afro-IP prediction post click here. IOL reports that "the interdict was [now] being sought on the basis that COPE should be prevented from using its name because it was "unlawful" and falsely represented the party as the "exclusive successor" to the 1955 Kliptown Congress of the People, at which the Freedom Charter was adopted." The case is set down for 8-12 December.

Recession..what Recession?

IP Finance recently quoted stats from the USPTO and OHIM offices that trade mark filings are set for another record year in Europe and the US but questions whether this can continue. A cursory view of filings in South Africa indicates that filings have not dropped in Africa's most advanced IP market either....(yet?). South Africa has the added advantage that its currency acts as a buffer. Bad news drops the rate making it cheaper to file...depending, of course, on whether your trade mark attorney passes that saving on.

Tuesday, 25 November 2008

The East African Standard reports that a Kenyan drug firm, Universal Corporation, is to start producing generic anti-retroviraldrugs. The report indicates that the firm is ready to start production once it finalizes negotiations with global health bodies who will be buying the bulk of the the drugs as the local market is very small. The firm is banking on commitment by WHO, Global Fund , the government and non-governmental organisations who are the major supplies of the drugs to the HIV /AIDS patients.

The Business daily interviewed Ms Marisella Ouma, the Kenya Copyright Board CEO and Executive Director, on the issue of copyright piracy in Kenya and the effort being taken by the board to address the menace for the sake of the creative industry in Kenya. Part of the interview can be found here.

On the role of the Board, the CEO is quoted as saying that the Board is active in the fight against piracy and it has adopted several approaches to deal with the vexing issue. The Board is involved in campaigns to create awareness among the right holders and the public. The second approach is enforcement of rights carried out by an enforcement unit which includes the police who carry out raids and confiscate infringing copies.

Ms Ouma cites a number of challenges faced by the Board such as lack of complainants and the fact that copyright infringement is not seen as a serious crime as evidenced by the non-deterrent penalties imposed on the offenders. The CEO sees collaboration with other government agencies and right holders as crucial in the fight against piracy.

Ratio Magazine carries an article on recent trade mark decisions in Kenya. While reviewing a number of court cases concerning trade mark disputes, the writer argues that the growth seen in Kenya’s manufacturing sector, which incidentally is dominated by subsidiaries of multi-national corporations, is facing new challenges of new players who are riding on the reputation of established brands.

The article gives a good account of the cases as well as the significance of the decisions for new investors in the Kenyan market. The writer observes that the increase in cases contesting brand names in the Kenyan market demonstrates the importance of protecting trade marks in order to “maintain an edge in an increasingly competitive business environment”.

On account of the decisions arrived at in the various cases looked at, the articles advices potential investors to protect their trademarks as neglecting to do so may in the end lead to far larger losses. According to the writer, a cost effect route for obtaining trade Mark protection is the Madrid system of International Trade Mark application of which Kenya is a member.

It is very rare that action in a trade mark fight is broadcast blow-by-blow. That's why the much talked about political name battle between the ANC and COPE (South Africa's new breakaway party) is intriguingly good news for the RSA trade mark profession and the firms involved. The ANC have taken issue with the terms "Congress of the People" threatening urgent High Court action and COPE have fiercely resisted. Both parties have used their lawyers and the press to communicate their position (see below) and by strange co-incidence, the ANC has pitted Adams & Adams chairman Chris Job against Bouwers boss Deon Bouwer. For those who do not know the RSA legal profession, Adams & Adams is almost as dominant as the ANC and Bouwers is a young splinter firm from DM Kisch, not unlike COPE. For what it is worth, if this goes to Court my money is on the splinter groups this time...but make your own minds up:

"The Congress of the People was a "seminal, historical event" in 1955 organised by the ANC and its congress alliance partners, which led to the adoption of the Freedom Charter, said ANC spokesperson Carl Niehaus. A letter from the ANC stated: "We believe we enjoy common law [ed - rights] in and to the name Congress of the People. "The ANC is also concerned about the fact that "in many political circles, the ANC is commonly referred to as the Congress of the People". The Nguni translation of the ANC is "khongolese", which means congress. "The consequence of this is that there will be serious confusion," said Niehaus. The letter asked Cope for an undertaking in writing that it would not use the name or any similar names and that no promotional or advertising material bear the name. The ANC "requests delivery of all material in their possession for destruction". "If they do not abide by this we will be entitled to institute urgent high court proceedings," said Niehaus. Job said on both sides affidavits and answering affidavits had not been filed yet. He said the matter may eventually become moot."

"Job says the ANC has no problem with the use of the word congress, or the acronym, Cope, but that the phrase, Congress of the People, cannot be used according to this article."

"When you look at the ANC's historical documents on their website there is no instance where they claim the name Congress of the People. "That is a historic event and is not the sole property of the ANC," said Bouwer. In a letter to the ANC on behalf of COPE, Bouwer questioned why the ANC wanted to go to court when the Independent Electoral Commission (IEC) was already engaged in examining COPE's application to register as a political party.

Chris Job, said COPE's refusal to accede to the ANC's demand made high court action "inevitable". "We will apply for an urgent interdict at the Pretoria High Court as early as next week," he said. We want to have a court hearing as soon as possible. We want the hearing to be heard before December 16. "We want to move urgently on this matter," Job said. The ANC would object to COPE's registration as a company and its applications to register its trademark and as a political party, he said.

Bouwer said this was premature, "because the IEC and the registrar of trademarks have not completed their processes". "The ANC should have waited to object to the IEC and the registrar of trademarks. Why did they have to go to court? "Although COPE has registered as a company with (the companies' register) Cipro, the ANC has a year in which they can still object to it. "The process to register a trademark takes up to two years and... the registrar of companies can still order COPE to use another name if a third party objects in the next 12 months," said Bouwer. He said the ANC should follow the rules and lodge its complaints with the IEC, and the registrars of companies and trademarks. "We are saying to the ANC: don't suppress us, but follow the rules. We have nothing against objections but this (squabble over the name) is not an urgent matter for the court. "I would be surprised if the court saw this matter as urgent, because the IEC and relevant bodies are dealing with the applications," Bouwer.

An SMS sent by former ANC Youth League leader and COPE organiser, Andile Nkuhlu, read: "Dear colleagues. This serves as information that the ANC has served papers on us to give an undertaking not to use Congress of the People in any form or they'll go to court on the 20th. Have told the lawyers to tell (them) to go to court since we will continue to use the name!"

"Jessie Duarte said the party took strong exception to the fact that the dissidents had decided to name themselves after the 1955 Congress of the People at Kliptown, Soweto - a campaign that was led by the ANC and which saw the adoption of the Freedom Charter. Duarte has accused Cope of trying to "steal" the legacy of the Freedom Charter, the document that forms the basis for the ANC's values and principles."

"the ANC must explain why it is abusing the courts to oppose names that have not been registered; why it is blocking registration of domain names all over the place, including attempting to intimidate the Companies and Intellectual Property Registration Office officials to reveal names of people who are registering various aspects of the Cope identity. It would be interesting to understand why parallel rallies and events are being organised in an attempt to dislodge this "non-threat"."

Monday, 24 November 2008

Afro-IP recently received a notice from Dr Afia Zakiya that The Univ of Ibadan, Nigeria will be hosting an IP workshop Feb 1-6, 2009 to help bring government, legal professionals and cultural workers together to better address IP issues for improved economic development. Information can be found here, which incidentally is an handy information site on traditional knowledge describing itself as the TK Bulletin "Traditional Knowledge Policy Analysis and Information Service".

Writing in last Friday's Daily Times (Malawi), Alec van Gelder and Mark Schultz ("My Point of View -Unchain Africa’s melodies") return to the sad if perpetually recurrent theme of music piracy in Africa.

Right: Elvis -- a product of Nashville or a prototype for Africa?

But, having done so, they point out that there is an entire business dimension to the music industry, and that most African nations do not understand this:

" ... But piracy explains only part of the problem. Recording companies underpay musicians and renege on agreements; radio stations fail to pay licence fees for tunes they air; most royalties agencies are state-owned or politically influenced: musicians get the worst deal in music.

It should be no surprise, then, that most commercial African music is recorded and produced in London or Paris".

After describing the success of Nashville, Tennessee, in dealing with similar phenomena in the previous century, the authors continue:

"This success can be copied. After collapsing in the 1990s, Zambia’s music industry has turned itself around. First came the new copyright law. Then, in 1999, a new Zambian record label, Mondo Music Records, sparked the revival. Much like Ralph Peer in Nashville, Mondo’s founder Chisha Folotiya showed the way for other entrepreneurs and creators, unleashing what he calls “exponential growth in the amount of Zambian music being produced in the last seven years, and also in the consumption and the appreciation of it.” “We want Zambian music to contribute towards the economic development of our country,” he adds.

Encouragingly, Africa’s musicians are already one step ahead of Nashville’s folk-singers before their commercial success: African music is already hugely appreciated elsewhere. But without a legal environment that enforces copyrights and contracts, Africans’ creativity is not protected and cannot contribute to economic development.

For example, John Collins of the School of Performing Arts in Ghana estimates the Ghanaian music industry alone could generate US$53 million a year from foreign sales if local conditions supported creativity.

Only South Africa has a strong music business, with internationally-known musicians such as Hugh Masekela, the late Miriam Makeba, Ladysmith Black Mambazo, Ray Phiri, and the Soweto Gospel Choir--not least because they have sound intellectual property rights.

Any country can benefit from that potential by allowing it to flourish. Creators are also entrepreneurs, even if they are playing for tips in bars, and, like businesses everywhere else, these entrepreneurs need economic freedom.

Unless legal systems empower creative talents by protecting their intellectual property, Africa’s musicians will continue to head abroad, taking with them the sounds, the entertainment and their money too".

It's not clear whether the authors are offering a gleam of hope, a prophecy of doom, or possibly both. But this article is right to emphasise that piracy is only a symptom of the problems facing creative musical talent in Africa -- albeit a serious one -- rather than the problem itself.

Thursday, 20 November 2008

Following an earlier post on President-elect Barack Obama's possible attitude toward IP, there is already a news report that Obama has picked "the nation's top law enforcement official", Attorney General to Eric H. Holder Jr., "who could be a strong ally in the entertainment industry's ongoing war on piracy." Holder has repeatedly noted the importance of IP as a major economic force and the need to protect it, according to the article.

Closer to Africa, The Statesman (Ghana's oldest mainstream newspaper) reports that Piracy is the most visible barrier to success of African musical talent. "In some West African countries, pirated music dominates as much as 90% of the market. No African country has restricted pirated music to less than a destructive 25% of the market."

Tuesday, 18 November 2008

In a fairly damning article on the take-down procedure for RSA hosted websites published here, MyBroadband.co.za article sets out why it is too easy to obtain a take-down notice in South Africa suggesting that actions of ISPA may also be unconstitutional. Afro-IP's experience of take down procedures is that it can be a very effective way of getting attention when IP is infringed but agrees that the system can be open to abuse.

Afro-IP welcomes IP's What's Up a blog focussing largely on IP in Nigeria and describing itself as "Intellectual Property News and Commentary. A place to engage in conversation and reflect on happenings in the world of IP. (Updated Wednesdays and Sundays.)" It is run by IPPERs Goldenrail and Dtrizzle.

Monday, 17 November 2008

Sapa and IOL report in an article entitled "Fake goods threaten 2010 - minister" that the the proliferation of counterfeit goods in South Africa poses a serious threat to the success of the 2010 Soccer World Cup according to Deputy Trade and Industry Minister Rob Davies. However, Mr Davies' speech, as reported, may be as dangerous as the problem itself. Quoting from the report:

"Speaking at a conference on intellectual property law in Vanderbijlpark, Gauteng, he warned that the local counterfeiting industry was growing "at an alarming rate". He highlighted the need to recognise that "laxity in the enforcement of intellectual property laws could have considerable reputational consequences, particularly as we prepare ourselves for the hosting of the 2010 Fifa World Cup". So far so good - these tournaments make money from sponsors and sponsors rely on the ability of the tournament to safeguard their brand and their significant sponsorship fee. An inability to do so will have a knock-on effect on investment not only during the tournament but generally. Mr Davies blames the laxity of enforcement of trade mark laws implying that the underlying legislaton is not to blame. Fortunately laxity is a problem that can be addressed in the short term. The dangerous bit starts here:

"The decision to grant recognition for particular trademarks and names in connection with the 2010 World Cup was a product of "considerable negotiation" between the SA government and Fifa (the International Federation of Association Football)...." Firstly, it is not clear what it means (brand owners do not normally negotiate for rights and should not have to) and secondly, the logical conclusion of the Minister's statement is that existing legislation does not recognise particular trademarks (sic). This is a far reaching statement when it comes to promoting the country for investment where the cause of which (inadequate trademark recognition laws) cannot be changed overnight. Let's hope he was just badly quoted because the trade mark laws in RSA comply with international standards and he could have been referring to FIFA's request under the Merchandise Marks Act reported here, in which case there should be some control over how the statement is communicated.

The Tehran Timesreports that Moroccan Minister of Foreign Trade Abdellatif Maazouz, together with Iran Chamber of Commerce, Industries and Mines Chairman Mohammad Nahavandian, has called for the expansion of Iran-Morocco economic relations and an exploration of ways to enhance and facilitate bilateral relations. Morocco is keen to use Iran’s experience in industry, energy, and car-making. Iran’s expertise in energy, dam-making, road construction, petrochemicals, and pharmaceuticals was also noted, particularly in light of Iran's priority of developing relations with Islamic countries.

Thursday, 13 November 2008

In "Brazil, EU Collaborate On Local Production Of AIDS Drugs In Mozambique", published on Monday in the excellent IP Watch, Claudia Jurberg describes an unusual and potentially invaluable exercise in life-saving tech transfer exercise between two Portuguese-speaking nations, Brazil and Mozambique. This article features Brazilian support for the establishment of a pharmaceutical plant in Maputo that will produce HIV/AIDS drugs such as antiretrovirals (ARVs). Claudia reports:

"The project has been developing in Mozambique since July 2005 under a partnership between the Mozambique Health Ministry and Farmanguinhos, the unit of the Oswaldo Cruz Foundation (Portuguese abbreviation Fiocruz) that produces medicines.

Fiocruz is one of the biggest public health institutions in Latin America and is dedicated - in addition to the production of drugs - to vaccines and kits to diagnose diseases. It also is responsible for the training of human resources for the public health system.

... [T]he plant in Africa will be inaugurated in the first semester of 2009 and is expected to begin production in the same year. The plant will produce ARVs and drugs against malaria and other diseases. The factory location is being adapted for the necessary equipment. The project is not expected to result in medicines being shipped to Brazil, but rather is intended to represent a commitment to helping Africa.The investment is aimed at advancing science and technology in Mozambique, lessening economic dependence and, specifically in this case, dependence on the development of ARVs. Currently, they are purchased from other countries at higher costs".

PRACTITIONERS from the film industry, performing arts, advertising, scholars, and other stakeholders took turns recently to appraise the various ways the menace of piracy can be curbed to pave way for a flourishing entertainment industry in Nigeria. Tagged, “Development Film in Africa II Conference and the Intellectual Property Rights Workshop, and which ran from Wednesday 13, through Friday, October 15, the highlight of the two-day event was the marking of the 10th anniversary of the Communication for Change(CFC), organizers of the event. For mor information click here.

Tuesday, 11 November 2008

Joff Wild's excellent IAM Blog has neatly summarised the big decisions facing Barack Obama when it comes to IP and number of those decisions will have ramifications for the African continent...and that is not just because Barack has family here:

Quoting from the article:

"• Internationally, there is the issue of the USTR Special 301 and IP in bilateral trade negotiations to deal with. During the election campaign, Obama made great play of the importance of safeguarding American jobs and industries. Will this be translated into even more emphasis on the enforcement of US IP rights overseas? If so, how will such a policy fit with another one of Obama’s themes, which is about restoring what he sees as the US’s broken relationship with much of the rest of the world?

• Moving on from that, how will the US position itself at WIPO and at the WTO with regard to IP? What stance will the new administration take with regard to specific issues such as patents and access to medicine and green technology?

• And talking of healthcare, it is clear that Obama does not like the present US system. With Democrat majorities in both the House and the Senate, he could well be in a position to do something about it. Will one of the things he will look at be the high price of medicines in the US and the role that patents play in ensuring that Americans pay more for their medicines than people in most other countries? If the answer to this question is yes, then the impact will be felt across the world.

• Finally, it will be interesting to see what kind of role the antitrust authorities, such as the Department of Justice, play in IP under an Obama presidency...."

If you want any OAPI news in English, you'll be disappointed. The most recent OAPI news that actually appears in English on its English-language news pages is about two years old. For anything more recent, you can click the hyperlink and get the ungrammatical message: "unavailable on this language". Are any readers of this weblog ready and willing to help OAPI out and give the organisation a few minutes of their time to put things right?

Sunday, 9 November 2008

This weekend's SAIIPL AGM saw Mike Du Toit complete his tenure as President and hand over the reigns to Brian Wimpey. Brian is a popular member of the IP Community and has been likened to the London mayor - Boris Johnson...at least the good parts. Afro Leo wishes him well!

Thursday, 6 November 2008

Noseweek's taster and our curiosity has shed some light on why IP lawyers are as thick as claimed by Mr Nose... and there is more to this story than a short update in the Punch-like publication as one might expect. The article itself has a go at SAIIPL's reply to a letter of complaint alleging that a local patent attorney had fraudulently altered the complainant's patent application. In effect Mr Nose (in his own direct way) calls the apparent reply, bureaucratic and circular - the reply apparently suggested that the complainant contact his patent attorney for advice. That all said, the update is just one part of a what appears to be a fairly complex series of events reported in Noseweek's September publication under the titles "Playing with Fire" and "Nothing Sinister" in which (in the former article) it is claimed that "a South African inventor has lost his rights to the safe paraffin stove he designed, because a lawyer agreed to draw up an illegal transaction and refused to correct the error". Serious stuff. And there is more in September ... in an article entitled "Bid To SA Hooch" Mr Nose exposes badly drafted letters of demand in trade mark matters.

Noseweek describes itself as "news you are not supposed to know" and one possible reason for its foray into the IP arena is that Hans Muhlberg, a well known commentator on IP issues in South Africa, is its assistant editor. One's first reaction may be that this type of press is not good news for the SA IP profession but is that correct? Should Noseweek's no-punches-pulled-name-and-shame approach not be applauded if there is a case to be answered...and how would you combat the bad press if it was YOU? ... And how big is Afro-Leo's nose? Hans has joined UK firm Beck Greener.

Wednesday, 5 November 2008

Even in trade-mark matters, we do it differently in Africa. The political flurries of the past week in South Africa held the prospect of a trade-mark battle of epic proportions, for nothing less than the ANC (African National Congress), or at least its acronym. The ANC breakaway party was allegedly intending to call itself the SANC (South African National Convention), and this provoked urgent proceedings to interdict use of this name, on the day before the conference at which the new party was to be formed. According to the South African Sunday Times of 2 November 2008, the founding affidavit of ANC secretary-general Gwede Mantashe alleged that the proposed name would ‘confuse or deceive the public’, including donors and potential donors, into thinking that the new party was connected with the ANC. He stated that this amounted to trademark infringement, and that ‘their conduct is likely to take unfair advantage of the distinctive character and reputation of the trademarks. It will create a chaotic and disrupted situation’.The matter was postponed for a week to allow the Independent Electoral Commission to be joined in the proceedings. But next day, at the conference, the new party’s name was announced as Sadec (South African Democratic Congress) and the prospects of a good trade-mark fight appeared remote.However, hope arrived on Monday in the form of Sadeco (also South African National Congress), a splinter party of (Nadeco), the National Democratic Convention, both of whom have already registered their names with the IEC. This party has apparently refused to allow the breakaway party to adopt their name.For the breakaways to be third time lucky in their choice of a new name, it might be a good idea to stay away from the terms ‘African’ National’ and ‘Democratic’!Fortunately for the South African Nurses Council (SANC), the Southern African Development Community (SADC or Sadec) and the South African Disability Empowerment Company (Sadeco), the principle of specificity still reigns in trade-mark law.

Egypt's English-language Daily Newsreports ("Microsoft inaugurates region’s first iCafe in Egypt", by Sherine El Madany) on the launch by Microsoft last month of its iCafe programme in Egypt. This project offers five local community libraries free access to the latest software technology and training curriculum. The iCafe programme is part of Microsoft Unlimited Potential, a long-term global business and citizenship commitment that seeks to improve lives of individuals and communities in the middle and bottom of the economic pyramid by delivering affordable and accessible technology that can help transform education and foster a culture of innovation, thus enabling better jobs and opportunities.

iCafe requires Microsoft to join forces with governments, businesses and non-profit organizations in order to extend the reach of IT skills and other market forces so as to redress the world’s inequities. Within the past year, Microsoft has launched initiatives similar to iCafe across the Middle East and Africa region, China, India, Latin America, Southeast Asia, as well as Central and South America. The aim is that, by 2015, Microsoft will reach around one billion people who have limited access or are not yet realizing the benefits of technology.

East London (South Africa) - In a landmark victory against film piracy, a man has been sentenced to three years house arrest and a suspended jail term after police seized 2 500 DVDs from his East London home.

Tuesday, 4 November 2008

Such is the headline in the AllAfrica report which records that "Developing countries negotiating with the European Union for an economic partnership agreement (EPA) or a free trade agreement should apply for "GSP-Plus" status with the EU, Kenya Civil Society activists say. It is useful article on the options available to African states that may be concerned over EPAs.

The Generalised System of Preferences (GSP-Plus) status provides non-reciprocal preferences to a large part of the exports of developing country compared with the non-reciprocal nature of the EPAs.

"Moreover, the GSP-Plus status does not require the developing country to sign on to commitments in other areas such as services, intellectual property, investment, competition policy and government procurement. The EU requires that their EPAs contain these issues," said a group of civil society organisations in a press statement.

There is a deadline of October 31 for countries to apply in this round for GSP-Plus status. If this deadline is missed, the next opportunity will come in April 2010.

"According to the EU, the main qualifying criteria are that any GSP-Plus beneficiary country must be considered "vulnerable" and must also have ratified and effectively implemented 27 specified international conventions in the fields of human rights, core labour standards, sustainable development and good governance."

Monday, 3 November 2008

Luxury lodge and adventure travel company CC Africa (Conservation Corporation Africa) currently owns and operates numerous lodges in Africa and in India, and is soon to welcome guests to another corner of the globe - Latin America. The company has changed its name to &BEYOND to more appropriately reflect where and how it operates. Exporting their successful luxury responsible tourism model out of Africa has provided the company with the perfect opportunity to reassess their brand needs and to change their current name to one that evokes the notion of luxury adventure travel to many more beautiful wilderness places on the planet.

Rebrands are always a sensitive time for any company. Brands function on an emotional level and so it becomes vitally important that the image and feeling around the new brand is carefully communicated and managed to ensure that the rebrand is successful. From a purely legal point of view this new brand, which incorporates everyday words such as "and" and "beyond", will need a strong trade mark team and a dedicated budget to protect it.